Appendix 2 – Convention
for the Protection of Individuals with regard to Automatic Processing
of Personal Data (ETS No. 108) – Draft Explanatory ReportNoteNoteNoteNote
This document was prepared on the basis of
the consolidated text of the draft modernised Convention 108 (see document GR-J(2016)14-rev4) and the numbering of the articles does not correspond
to the draft Amending Protocol of the Convention.
1 In the thirty five years that
have elapsed since the Convention for the Protection of individuals
with Regard to Automated Processing of Personal Data, also known
as Convention 108 (hereafter also referred to as “the Convention”)
was opened for signature, the Convention has served as the foundation
for international data protection law in over 40 European countries.
It has also influenced policy and legislation far beyond Europe’s
shores. With new challenges to human rights and fundamental freedoms,
notably to the right to private life, arising every day, it appeared
clear that the Convention should be modernised in order to better address
emerging privacy challenges resulting from the increasing use of
new information and communication technologies, the globalisation
of processing operations and the ever greater flows of personal
data, and, at the same time, to strengthen the Convention’s evaluation
and follow-up mechanism.
2 Broad consensus on the following aspects of the modernisation
process emerged: the general and technologically neutral nature
of the Convention’s provisions must be maintained; the Convention’s
coherence and compatibility with other legal frameworks must be
preserved; and the Convention’s open character, which gives it a
unique potential as a universal standard, must be reaffirmed. The
text of the Convention is of a general nature and can be supplemented
with more detailed soft-law sectoral texts in the form notably of Committee
of Ministers’ Recommendations elaborated with the participation
of interested stakeholders.
The modernisation work was carried out in the broader context
of various parallel reforms of international data protection instruments
and taking due account of the 1980 (revised in 2013) Guidelines
on the Protection of Privacy and Transborder Flows of Personal Data
of the Organisation for Economic Co‑operation and Development (OECD),
the 1990 United Nations Guidelines for the Regulation of Computerized
Personal Data Files, the European Union’s (EU) framework (1995 onwardsNote
), the Asia-Pacific Economic Cooperation
Privacy framework (2004) and the 2009 ”International Standards on
the Protection of Privacy with regard to the processing of Personal
regard to the EU data protection reform package in particular, the
works ran in parallel and utmost care was taken to ensure consistency
between both legal frameworks. The EU data protection framework
gives substance and amplifies the principles of Convention 108 and
takes into account accession to Convention 108, notably with regard
to international transfers.Note
4 The Consultative Committee set up by Article 18 of the Convention
prepared draft modernisation proposals which were adopted at its
29th Plenary meeting (27-30 November
2012) and submitted to the Committee of Ministers. The Committee
of Ministers subsequently entrusted the ad
hoc Committee on data protection (CAHDATA) with the task
of finalising the modernisation proposals. This was completed on
the occasion of the 3rd meeting of the
CAHDATA (1-3 December 2014). Further to the finalisation of the
EU data protection framework, another CAHDATA was established with
a view to examine outstanding issues. The last CAHDATA meeting (15-16
June 2016) finalised its proposals and transmitted them to the Committee
of Ministers for consideration and adoption.
5 The text of this explanatory report does not constitute an
instrument providing an authoritative interpretation of the Convention
but rather contains information intended to guide and assist application
of its provisions. The legal obligations of the Parties derive from
the text of the Convention and no provision of the present report
is to be understood as restricting, lowering or extending the rights
and obligations laid down in the Convention.
This Protocol has been open for signature in..., on...
The purpose of this Protocol
is to modernise the Council of Europe Convention for the Protection
of Individuals with regard to Automatic Processing of Personal Data
) and its additional protocol on supervisory authorities
and transborder flows (ETS
), and to strengthen their application.
2 The explanatory reports to Convention 108 and to its additional
protocol remain relevant in so far as they provide historical context
and describe the evolution of both instruments, and they can be
read in conjunction with the present one for those purposes.
1 The Preamble reaffirms the commitment
of the signatory States to human rights and fundamental freedoms.
2 A major objective of the Convention is to put individuals
in a position to know, to understand and to control the processing
of their personal data by others. Accordingly, the Preamble expressly
refers to the right to personal autonomy and the right to control
one’s personal data, which stems in particular from the right to privacy,
as well as to the dignity of individuals. Human dignity requires
that safeguards be put in place when processing personal data, in
order for individuals not to be treated as mere objects.
Taking into account the role of the right to protection of
personal data in society, the Preamble underlines the principle
that the interests, rights and fundamental freedoms of individuals
have, where necessary, to be reconciled with each other. It is in
order to maintain a careful balance between the different interests,
rights and fundamental freedoms that the Convention lays down certain
conditions and restrictions with regard to the processing of information
and the protection of personal data. The right to data protection
is for instance to be considered alongside the right to ‘freedom
of expression’ as laid down in Article 10 of the European Convention on
Human Rights, which includes the freedom to hold opinions and to
receive and impart information. Furthermore, the Convention confirms
that the exercise of the right to data protection, which is not
absolute, should not be used as a general means to prevent public
access to official documents.Note
4 Convention 108, through the principles it lays down and the
values it enshrines, protects the individual while providing a framework
for international data flows. This is important as global information
flows play an increasingly significant role in modern society, enabling
the exercise of fundamental rights and freedoms while triggering
innovation and fostering social and economic progress, while also
playing a vital role in ensuring public safety. The flow of personal
data in an information and communication society must respect the fundamental
rights and freedoms of individuals. Furthermore, the development
and use of innovative technologies should also respect those rights.
This will help to build trust in innovation and new technologies and
further enable their development.
5 As international cooperation between supervisory authorities
is a key element for effective protection of individuals, the Convention
aims to reinforce such cooperation, notably by requiring Parties
to render mutual assistance, and providing the appropriate legal
basis for a framework of cooperation and exchange of information
for investigations and enforcement.
Chapter I – General
Article 1 – Object
The first article describes the
Convention's object and purpose. This article focuses on the subject
of protection: individuals are to be protected when their personal
data is processed.Note
More recently, data protection has been included
as a fundamental right in Article 8 of the Charter of Fundamental
Rights of the European Union as well as in the constitutions of
several Parties to the Convention.
The guarantees set out in the Convention are extended to every
individual regardless of nationality or residence. No discrimination
between citizens and third country nationals in the application
of these guarantees is allowed.Note
Clauses restricting data protection
to a State’s own nationals or legally resident foreign nationals would
be incompatible with the Convention.
Article 2 – Definitions
1 The definitions used in this
Convention are meant to ensure the uniform application of terms
to express certain fundamental concepts in national legislation.
Litt. a – ‘personal data’
2 "Identifiable individual" means
a person who can be directly or indirectly identified. An individual
is not considered ’identifiable’ if his or her identification would
require unreasonable time, effort or resources. Such is the case
for example when identifying a data subject would require excessively
complex, long and costly operations. The issue of what constitutes
“unreasonable time, efforts or resources” should be assessed on
a case-by-case basis. For example, consideration could be given
to the purpose of the processing and taking into account objective
criteria such as the cost, the benefits of such an identification,
the type of controller, the technology used, etc. Furthermore, technological
and other developments may change what constitutes ‘unreasonable
time, effort or other resources’.
3 The notion of ‘identifiable’ does not only refer to the individual’s
civil or legal identity as such, but also to what may allow to “individualise”
or single out (and thus allow to treat differently) one person from
others. This “individualisation” could be done, for instance, by
referring to him or her specifically, or to a device or a combination
of devices (computer, mobile phone, camera, gaming devices, etc.)
on the basis of an identification number, a pseudonym, biometric
or genetic data, location data, an IP address, or other identifier. The
use of a pseudonym or of any digital identifier/digital identity
does not lead to anonymisation of the data as the data subject can
still be identifiable or individualised. Pseudonymous data is thus
to be considered as personal data and is covered by the provisions
of the Convention. The quality of the pseudonymisation techniques
applied should be duly taken into account when assessing the appropriateness
of safeguards implemented to mitigate the risks to data subjects.
4 Data is to be considered as anonymous only as long as it is
impossible to re-identify the data subject or if such re-identification
would require unreasonable time, effort or resources, taking into
consideration the available technology at the time of the processing
and technological developments. Data that appears to be anonymous
because it is not accompanied by any obvious identifying element
may, nevertheless in particular cases (not requiring unreasonable
time, effort or resources), permit the identification of an individual.
This is the case, for example, where it is possible for the controller
or any person to identify the individual through the combination
of different types of data, such as physical, physiological, genetic,
economic, or social data (combination of data on the age, sex, occupation,
geolocation, family status, etc.). Where this is the case, the data
may not be considered anonymous and is covered by the provisions
of the Convention.
5 When data is made anonymous, appropriate means should be put
in place to avoid re-identification of data subjects, in particular,
all technical means should be implemented in order to guarantee
that the individual is not or no longer identifiable. They should
be regularly re-evaluated in light of the fast pace of technological development.
Litt. b and c – ‘data processing’
6 "Data processing” starts from
the collection of personal data and covers all operations performed
on personal data, whether partially or totally automated. Where
automated processing is not used, data processing means an operation
or set of operations performed upon personal data within a structured
set of such data which are accessible or retrievable according to
specific criteria, allowing the controller or any other person to
search, combine or correlate the data related to a specific data
Litt. d – ‘controller’
7 "Controller” refers to the person
or body having the decision-making power concerning the purposes
and means of the processing, whether this power derives from a legal
designation or factual circumstances that are to be assessed on
a case by case basis. In some cases, there may be multiple controllers
or co-controllers (jointly responsible for a processing and possibly
responsible for different aspects of that processing). When assessing
whether the person or body is a controller, special account should
be taken of whether that person or body determines the reasons justifying
the processing, in other terms its purposes and the means used for it.
Further relevant factors for this assessment include whether the
person or body has control over the processing methods, the choice
of data to be processed and who is allowed to access it. Those who
are not directly subject to the controller and carry out the processing
on the controller's behalf, and solely according to the controller’s
instructions, are to be considered processors. The controller remains
responsible for the processing also where a processor is processing
the data on his or her behalf.
Litt. e – ‘recipient’
8 ”Recipient” is an individual
or an entity who receives personal data or to whom personal data
is made available. Depending on the circumstances, the recipient
may be a controller or a processor. For example, an enterprise can
send certain data of employees to a government department that will
process it as a controller for tax purposes. It may send it to a
company offering storing service and acting as a processor. The
recipient can be a public authority or an entity that has been granted
the right to exercise a public function but where the data received
by the authority or entity is processed in the framework of a particular
inquiry in accordance with the applicable law, that public authority
or entity shall not be regarded as a recipient. Requests for disclosure from
public authorities should always be in writing, reasoned and occasional
and should not concern the entirety of a filing system or lead to
the interconnection of filing systems. The processing of personal
data by those public authorities should comply with the applicable
data protection rules according to the purposes of the processing.
Litt. f – ‘processor’
9 ”Processor” is any natural or
legal person (other than an employee of the data controller) who
processes data on behalf of the controller and according to the
controller’s instructions. The instructions given by the controller
establish the limit of what the processor is allowed to do with
the personal data.
Article 3 – Scope
1 According to paragraph 1, each Party should apply
the Convention to all processing – within the public or private
sector alike – subject to its jurisdiction.
2 Making the scope of the protection dependent on the notion
of ‘jurisdiction’ of the Parties, is justified by the objective
of better standing the test of time and accommodating continual
3 Paragraph 1bis excludes
processing carried out for purely personal or household activities
from the scope of the Convention. This exclusion aims at avoiding
the imposition of unreasonable obligations on data processing carried
out by individuals in their private sphere for activities relating
to the exercise of their private life. Personal or household activities
are activities which are closely and objectively linked to the private
life of an individual and which do not significantly impinge upon
the personal sphere of others. These activities have no professional
or commercial aspects and relate exclusively to personal or household
activities such as storing family or private pictures on a computer,
creating a list of the contact details of friends and family members,
corresponding, etc. The sharing of data within the private sphere
encompasses notably the sharing between a family, a restricted circle
of friends or a circle which is limited in its size and based on
a personal relationship or a particular relation of trust.
Whether activities are ‘purely personal or household activities’
will depend on the circumstances. For example, when personal data
is made available to a large number of persons or to persons obviously
external to the private sphere, such as a public website on the
Internet, the exemption will not apply. Likewise, the operation
of a camera system, as a result of which a video recording of people
is stored on a continuous recording device such as a hard disk drive,
installed by an individual on his or her family home for the purposes of
protecting the property, health and life of the home owners, but
which covers, even partially, a public space and is accordingly
directed outwards from the private setting of the person processing
the data in that manner, cannot be regarded as an activity which
is a purely ‘personal or household’ activity.Note
5 The Convention nonetheless applies to data processing carried
out by providers of the means for processing personal data for such
personal or household activities.
6 While the Convention concerns data processing relating to
individuals, the Parties may extend the protection in their domestic
law to data relating to legal persons in order to protect their
legitimate interests. The Convention applies to living individuals:
it is not meant to apply to personal data relating to deceased persons. However,
this does not prevent Parties from extending the protection to deceased
Chapter II – Basic
principles of data protection
Article 4 – Duties
of the Parties
1 As this article indicates, the
Convention obliges Parties to incorporate its provisions into their
law and secure their effective application in practice; how this
is done depends on the applicable legal system and the approach
of incorporation of international treaties.
2 The term “law of the Parties” denotes, according to the legal
and constitutional system of the particular country, all enforceable
rules, whether of statute law or case law. It must meet the qualitative
requirements of accessibility and previsibility (or ‘foreseeability’).
This implies that the law should be sufficiently clear to allow individuals
and other entities to regulate their own behaviour in light of the
expected legal consequences of their actions, and that the persons
who are likely to be affected by this law should have access to
it. It encompasses rules that place obligations or confer rights
on persons (whether natural or legal) or which govern the organisation,
powers and responsibilities of public authorities or lay down procedure.
In particular, it includes States' constitutions and all written
acts of legislative authorities (laws in the formal sense) as well
as all regulatory measures (decrees, regulations, orders and administrative
directives) based on such laws. It also covers international conventions
applicable in domestic law, including European Union law. Further,
it includes all other statutes of general nature, whether of public
or private law (including law of contract), together with court
decisions in common law countries, or in all countries, established
case law interpreting a written law.
In addition, it includes any act of a professional body under
powers delegated by the legislator and in accordance with its independent
3 Such “law of the Parties” may
be usefully reinforced by voluntary regulation measures in the field
of data protection, such as codes of good practice or codes for
professional conduct. However, such voluntary measures are not by
themselves sufficient to ensure full compliance with the Convention.
Where international organisations are concernedNote
in some situations, the law of such international organisations
may be applied directly at the national level of the member States
of such organisations depending on each national legal system.
5 The effectiveness of the application of the measures giving
effect to the provisions of the Convention is of crucial importance.
The role of the supervisory authority (or authorities), together
with any remedies that are available to data subjects, should be
considered in the overall assessment of the effectiveness of a Party’s implementation
of the Convention’s provisions.
6 It is further stipulated in paragraph 2 that the measures
giving effect to the Convention shall be taken by the Parties concerned
and shall have come into force by the time of ratification or accession,
i.e. when a Party becomes legally bound by the Convention. This
provision aims to enable the Convention Committee to verify whether
all “necessary measures” have been taken, to ensure that the Parties
to the Convention observe their commitments and provide the expected
level of data protection in their national law. The process and
criteria used for this verification are to be clearly defined in
the Convention Committee’s rules of procedure.
7 Parties commit in paragraph 3 to contribute actively to the
evaluation of their compliance with their commitments, with a view
to ensuring regular assessment of the implementation of the principles
of the Convention (including its effectiveness). Submission of reports
by the Parties on the application of their data protection law could
be one possible element of this active contribution.
8 37. In exercising its powers under paragraph 3, the Convention
Committee shall not evaluate whether a Party has taken effective
measures, to the extent it has made use of exceptions and restrictions
in accordance with the provisions of this Convention. It follows
that under Article 9 paragraph 3 a Party shall not be required to
provide classified information to the Convention Committee.
9 The evaluation of a Party’s compliance will be carried out
by the Convention Committee on the basis of an objective, fair and
transparent procedure established by the Convention Committee and
fully described in its rules of procedure.
Article 5 – Legitimacy
of data processing and quality of data
1 Paragraph 1 provides that data
processing must be proportionate, that is, appropriate in relation
to the legitimate purpose pursued and having regard to the interests,
rights and freedoms of the data subject or the public interest.
Such data processing should not lead to a disproportionate interference
with these interests, rights and freedoms. The principle of proportionality
is to be respected at all stages of processing, including at the
initial stage, i.e. when deciding whether or not to carry out the
2 Paragraph 2 prescribes two alternate essential pre-requisites
for a lawful processing: the individual’s consent or a legitimate
basis prescribed by law. Paragraphs 1, 2, 3 and 4 of Article 5 are
cumulative and must be respected in order to ensure the legitimacy
of the data processing.
3 The data subject’s consent must be freely given, specific,
informed and unambiguous. Such consent must represent the free expression
of an intentional choice, given either by a statement (which can
be written, including by electronic means, or oral) or by a clear
affirmative action and which clearly indicates in this specific context
the acceptance of the proposed processing of personal data. Mere
silence, inactivity or pre-validated forms or boxes should not,
therefore, constitute consent. Consent should cover all processing
activities carried out for the same purpose or purposes (in the
case of multiple purposes, consent should be given for each different
purpose). There can be cases with different consent decisions (e.g.
where the nature of the data is different even if the purpose is
the same – such as health data versus location data: in such cases
the data subject may consent to the processing of his or her location
data but not to the processing of the health data).The data subject
must be informed of the implications of his or her decision (what
the fact of consenting entails and the extent to which consent is
No undue influence or pressure (which can be of an economic
or other nature) whether direct or indirect, may be exercised on
the data subject and consent should not be regarded as freely given
where the data subject has no genuine or free choice or is unable
to refuse or withdraw consent without prejudice.
4 In the context of scientific
research it is often not possible to fully identify the purpose
of personal data processing for scientific research purposes at
the time of data collection. Therefore, data subjects should be allowed
to give their consent to certain areas of scientific research in
keeping with recognised ethical standards for scientific research.
Data subjects should have the opportunity to give their consent
only to certain areas of research or parts of research projects
to the extent allowed by the intended purpose.
5 An expression of consent does not waive the need to respect
the basic principles for the protection of personal data set in
Chapter II of the Convention and the proportionality of the processing,
for instance, still has to be considered.
6 The data subject has the right to withdraw the consent he
or she gave at any time (which is to be distinguished from the separate
right to object to processing). This will not affect the lawfulness
of the data processing that occurred before the data controller
has received his or her withdrawal of consent but does not allow
continued processing of data, unless justified by some other legitimate
basis laid down by law.
7 The notion of “legitimate basis laid down by law”, referred
to in paragraph 2, encompasses inter alia data processing necessary
for the fulfilment of a contract (or pre-contractual measures at
the request of the data subject) to which the data subject is party,
data processing necessary for the protection of the vital interests
of the data subject or of another person, data processing necessary
for compliance with a legal obligation to which the controller is
subject, and data processing carried out on the basis of grounds
of public interest or for overriding legitimate interests of the
controller or of a third party.
Data processing carried out on grounds of public interest
should be provided for by law; inter
, for monetary, budgetary and taxation matters, public
health and social security, the prevention, investigation, detection
and prosecution of criminal offences and the execution of criminal
penalties, the protection of national security, defence, the prevention,
investigation, detection and prosecution of breaches of ethics for
regulated professions, the enforcement of civil law claims and the
protection of judicial independence and judicial proceedings. Data
processing may serve both a ground of public interest and the vital
interests of the data subject as, for instance, in the case of data
processed for humanitarian purposes including monitoring a life-threatening
epidemic and its spread or in humanitarian emergencies. The latter
may occur in situations of natural disasters where processing of
personal data of missing persons may be necessary for a limited
time for purposes related to the emergency context – which is to
be evaluated on a case-by-case basis. It can also occur in situations
of armed conflicts or other violence.Note
The processing of personal data by official
authorities for the purpose of achieving the aims, laid down by
constitutional law or by international public law, of officially recognised
religious associations can also be considered as carried out on
grounds of public interest.
9 The conditions for legitimate processing are set out in paragraphs
3 and 4. Personal data should be processed lawfully, fairly and
in a transparent manner. Personal data must also have been collected
for explicit, specified and legitimate purposes, and the processing
of that particular data must serve those purposes, or at least not
be incompatible with them. The reference to specified "purposes"
indicates that it is not permitted to process data for undefined,
imprecise or vague purposes. What is considered a legitimate purpose
depends on the circumstances as the objective is to ensure that
a balancing of all rights, freedoms and interests at stake is made
in each instance; the right to the protection of personal data on
the one hand, and the protection of other rights on the other hand,
as, for example, between the interests of the data subject and the
interests of the controller or of society.
10 The concept of compatible use should not hamper the transparency,
legal certainty, predictability or fairness of the processing. Personal
data should not be further processed in a way that the data subject
might consider unexpected, inappropriate or otherwise objectionable.
In order to ascertain whether a purpose of further processing is
compatible with the purpose for which the personal data is initially
collected, the controller, after having met all the requirements
for the lawfulness of the original processing, should take into
account, inter alia: any link between those purposes and the purposes
of the intended further processing; the context in which the personal
data has been collected, in particular the reasonable expectations
of data subjects based on their relationship with the controller
as to its further use; the nature of the personal data; the consequences of
the intended further processing for data subjects; and the existence
of appropriate safeguards in both the original and intended further
The further processing of personal data, referred to in paragraph
4(b), for archiving purposes in the public interest, scientific
or historical research purposes or statistical purposes is a priori
considered as compatible
provided that other safeguards exist (such as, for instance, anonymisation
of data or data pseudonymisation, except if retention of the identifiable
form is necessary, rules of professional secrecy, provisions governing
restricted access and communication of data for the above-mentioned
purposes, notably in relation with statistics and public archives,
other technical and organisational data-security measures) and that
the operations, in principle, exclude any use of the information
obtained for decisions or measures concerning a particular individual.
to the elaboration of statistical surveys or the production of statistical,
aggregated results. Statistics aim at analysing and characterising
mass or collective phenomena in a considered population.Note
purposes can be pursued either by the public or the private sector.
Processing of data for “scientific research
aims at providing researchers with information contributing
to an understanding of phenomena in varied scientific fields (epidemiology,
psychology, economics, sociology, linguistics, political science,
criminology, etc.) with a view to establishing permanent principles,
laws of behaviour or patterns of causality which transcend all the
individuals to whom they apply.Note
“Historical research purposes”
genealogical research. ‘Archiving purposes
in the public interest
’ can also include archives originating
from private entities, where a public interest is involved.
12 Personal data undergoing processing should be adequate, relevant
and not excessive. Furthermore, the data should be accurate and,
where necessary, regularly kept up to date.
13 The requirement of paragraph 4(c) that data be “not excessive”
first requires that data processing should be limited to what is
necessary for the purpose for which it is processed. It should only
be processed if, and as long as, the purposes cannot reasonably
be fulfilled by processing information that does not involve personal data.
Furthermore, this requirement not only refers to the quantity, but
also to the quality of personal data. Personal data which is adequate
and relevant but would entail a disproportionate interference in
the fundamental rights and freedoms at stake should be considered
as excessive and not be processed.
14 The requirement of paragraph 4(e) concerning the time-limits
for the storage of personal data means that data should be deleted
once the purpose for which it was processed has been achieved or
it should only be kept in a form that prevents any direct or indirect
identification of the data subject.
15 Limited exceptions to Article 5 paragraph 4 are permitted
under the conditions specified in Article 9 paragraph 1.
Article 6 – Special
categories of data
1 Processing of certain types of
data, or processing of certain data for the sensitive information
it reveals, may lead to encroachments on interests, rights and freedoms.
This can for instance be the case where there is a potential risk
of discrimination or injury to an individual’s dignity or physical
integrity, where the data subject’s most intimate sphere, such as
his or her sex life or sexual orientation, is being affected, or
where processing of data could affect the presumption of innocence.
It should only be permitted where appropriate safeguards, which
complement the other protective provisions of the Convention, are
provided for by law. The requirements of appropriate safeguards,
complementing the provisions of the Convention, does not exclude the
possibility provided under Article 9 to allow exceptions and restrictions
to the rights of data subjects granted under Article 8.
2 In order to prevent adverse effects for the data subject,
processing of sensitive data for legitimate purposes need to be
accompanied with appropriate safeguards (which are adapted to the
risks at stake and the interests, rights and freedoms to protect),
such as for instance, alone or cumulatively, the data subject’s explicit
consent, a law covering the intended purpose and means of the processing
or indicating the exceptional cases where processing such data would
be permitted, a professional secrecy obligation, measures following a
risk analysis, a particular and qualified organisational or technical
security measure (data encryption for example).
3 Specific types of data processing may entail a particular
risk for data subjects independently of the context of the processing.
It is, for instance, the case with the processing of genetic data,
which can be left by individuals and can reveal information on the
health or filiation of the person, as well as of third parties.
Genetic data are all data relating to the genetic characteristics
of an individual which have been either inherited or acquired during
early prenatal development, as they result from an analysis of a
biological sample from the individual concerned: chromosomal, DNA
or RNA analysis or analysis of any other element enabling equivalent information
to be obtained. Similar risks occur with the processing of data
related to criminal offences (which includes suspected offences),
criminal convictions (based on criminal law and in the framework
of criminal proceedings) and related security measures (involving
deprivation of liberty for instance) which require the provision
of appropriate safeguards for the rights and freedoms of data subjects.
4 Processing of biometric data, that is data resulting from
a specific technical processing of data concerning the physical,
biological or physiological characteristics of an individual which
allows the unique identification or authentication of the individual,
is also considered sensitive when it is precisely used to uniquely
identify the data subject.
5 The context of the processing of images is relevant to the
determination of the sensitive nature of the data. The processing
of images will not generally involve processing of sensitive data
as the images will only be covered by the definition of biometric
data when being processed through a specific technical mean which permits
the unique identification or authentication of an individual. Furthermore,
where processing of images is intended to reveal racial, ethnic
or health information (see the following point), such a processing
will be considered as a processing of sensitive data. On the contrary,
images processed by a video surveillance system solely for security
reasons in a shopping area will not generally be considered as processing
of sensitive data.
6 Processing of sensitive data has the potential to adversely
affect data subjects’ rights when it is processed for specific information
it reveals. While the processing of family names can in many circumstances be
void of any risk for individuals (e.g. common payroll purposes),
such a processing could in some cases involve sensitive data, for
example when the purpose is to reveal the ethnic origin or religious
beliefs of the individuals based on the linguistic origin of their
names. Information concerning health includes information concerning
the past, present and future, physical or mental health of an individual,
and which may refer to a person who is sick or healthy. Processing
images of persons with thick glasses, a broken leg, burnt skin or
other visible health element can only be considered as processing
sensitive data when the processing is based on the health information
that can be extracted from the pictures.
Where sensitive data has to be processed for a statistical
purpose it should be collected in such a way that the data subject
is not identifiable. Collection of sensitive data without identification
data is a safeguard within the meaning of Article 6. Where there
is a legitimate need to collect sensitive data for statistical purposes in
identifiable form (so that a repeat or longitudinal survey can be
carried out, for example), appropriate safeguards should be put
Article 7 – Data
1 The controller or where applicable
the processor should take specific security measures, both of technical
and organisational nature, for each processing, taking into account:
the potential adverse consequences for the individual, the nature
of the personal data, the volume of personal data processed, the degree
of vulnerability of the technical architecture performing the processing,
the need to restrict access to the data, requirements concerning
long-term storage, and so forth.
2 Security measures should take into account the current state
of the art of data security methods and techniques in the field
of data processing. Their cost should be commensurate to the seriousness
and probability of the potential risks. Security measures should
be kept under review and updated where necessary.
3 While security measures are aimed at preventing a number of
risks, paragraph 2 contains a specific obligation where a data breach
has nevertheless occurred that may seriously interfere with the
fundamental rights and freedoms of the individual. For instance,
the disclosure of data covered by professional confidentiality,
or which may result in financial, reputational, or physical harm
or humiliation, could be deemed to constitute a “serious” interference.
4 Where such a data breach has occurred, the controller is required
to notify the relevant supervisory authorities of the incident,
subject to the exception permitted under Article 9 paragraph 1.
This is the minimum requirement. The controller should also notify
the supervisory authorities of any measures taken and/or proposed
to address the breach and its potential consequences.
5 The notification made by the controller to the supervisory
authorities does not preclude other complementary notifications.
For instance, the controller may also recognise the need to notify
the data subjects in particular when the data breach is likely to
result in a significant risk for the rights and freedoms of individuals,
such as discrimination, identity theft or fraud, financial loss,
damage to the reputation, loss of confidentiality of data protected
by professional secrecy or any other significant economic or social disadvantage,
and to provide them with adequate and meaningful information on,
notably, the contact points and possible measures that they could
take to mitigate the adverse effects of the breach. In cases where
the controller does not spontaneously inform the data subject of
the data breach, the supervisory authority, having considered the
likely adverse effects of the breach, should be allowed to require
the controller to do so. Notification to other relevant authorities
such as those in charge of computer systems security may also be desirable.
Article 7bis – Transparency
1 The controller is required to
act transparently when processing data in order to ensure fair processing and
to enable data subjects to understand and thus fully exercise their
rights in the context of such data processing.
2 Certain essential information has to be compulsorily provided
in a proactive manner by the controller to the data subjects when
directly or indirectly (not through the data subject but through
a third-party) collecting their data, subject to the possibility
to provide for exceptions in line with Article 9 paragraph 1. Information
on the name and address of the controller (or co-controllers), the
legal basis and the purposes of the data processing, the categories
of data processed and recipients, as well as the means of exercising
the rights can be provided in any appropriate format (either through
a website, technological tools on personal devices, etc.) as long
as the information is fairly and effectively presented to the data
subject. The information presented should be easily accessible,
legible, understandable and adapted to the relevant data subjects
(in a child friendly language where necessary for instance). Any
additional information that is necessary to ensure fair data processing
or that is useful for such purpose, such as the preservation period,
the knowledge of the reasoning underlying the data processing, or
information on data transfers to a recipient in another Party or non-Party
(including whether that particular non-Party provides an appropriate
level of protection or the measures taken by the controller to guarantee
such an appropriate level of data protection) is also to be provided.
3 The controller is not required to provide this information
where the data subject has already received it, or in the case of
an indirect collection of data through third parties where the processing
is expressly prescribed by law, or where this proves to be impossible
or it involves disproportionate efforts because the data subject
is not directly identifiable or the controller has no way to contact
the data subject. Such impossibility can be both of a legal nature
(in the context of a criminal investigation for instance) or of
a practical nature (for instance when a controller is only processing
pictures and does not know the names and contact details of the
4 The data controller may use any available, reasonable and
affordable means to inform data subjects collectively (through a
website or public notice) or individually. If it is impossible to
do so when commencing the processing, it can be done at a later
stage, for instance when the controller is put in contact with the
data subject for any new reason.
Article 8 – Rights
of the data subject
1 This Article lists the rights
that every individual should be able to exercise concerning the
processing of personal data relating to him or her. Each Party shall
ensure, within its legal order, that all those rights are available
for every data subject together with the necessary, adequate and
effective legal and practical means to exercise them.
These rights include the following:
- the right not to be subject to a purely automated decision
without having one’s views taken into consideration (littera a);
- the right to request confirmation of a processing of data
relating to him or her and to access the data at reasonable intervals
and without excessive delay or expense (littera b);
- the right to be provided, on request, with knowledge of
the reasoning underlying data processing where the results of such
processing are applied to him or her (littera c);
- the right to object on grounds relating to his or her
situation, to a processing of personal data relating to him or her,
unless the controller demonstrates legitimate grounds for the processing
which override his or her interests or rights and fundamental freedoms
- the right to rectification or erasure of inaccurate, false,
or unlawfully processed data (littera e);
- the right to a remedy if any of the previous rights is
not respected (littera f);
- the right to obtain assistance from a supervisory authority
3 Those rights may have to be reconciled with other rights and
legitimate interests. They can, in accordance with Article 9, be
limited only where this is provided for by law and constitutes a
necessary and proportionate measure in a democratic society. For
instance, the right to erasure of personal data may be restricted
to the extent that processing is necessary for compliance with a
legal obligation which requires processing by law to which the controller
is subject or for the performance of a task carried out in the public interest
or in the exercise of official authority vested in the controller.
4 Whilst the Convention does not specify from whom a data subject
may obtain confirmation, communication, rectification, etc., or
to whom to object or express his or her views, in most cases, this
will be the controller, or the processor on his or her behalf. In
exceptional cases, the means to exercise the rights to access, rectification
and erasure may involve the intermediary of the supervisory authority.
Concerning health data, rights may also be exercised in a different
manner than through direct access. They may be exercised for instance
with the assistance of a health professional when it is in the interest
of the data subject, notably to help him/her understand the data
or ensure that the data subject’s psychological state is appropriately considered
when imparting information – in line, of course, with deontological
5 Littera a. It is essential
that an individual who may be subject to a purely automated decision
has the right to challenge such a decision by putting forward, in
a meaningful manner, his or her point of view and arguments. In
particular, the data subject should have the opportunity to substantiate
the possible inaccuracy of the personal data before it is used,
the irrelevance of the profile to be applied to his or her particular
situation, or other factors that will have an impact on the result
of the automated decision. This is notably the case where individuals
are stigmatised by application of algorithmic reasoning resulting
in limitation of a right or refusal of a social benefit or where
they see their credit capacity evaluated by a software only. However,
an individual cannot exercise this right if the automated decision
is authorised by a law to which the controller is subject and which
also lays down suitable measures to safeguard the data subject's
rights and freedoms and legitimate interests.
6 Littera b. Data subjects
should be entitled to know about the processing of their personal
data. The right of access should, in principle, be free of charge.
However, the wording of littera b. is
intended to allow the controller in certain specific conditions
to charge a reasonable fee where the requests are excessive and
to cover various approaches that could be adopted by a Party for
appropriate cases. Such a fee should be exceptional and in any case
reasonable, and not prevent or dissuade data subjects from exercising
their rights. The controller or processor could also refuse to respond
to manifestly unfounded or excessive requests, in particular because
of their repetitive character. The controller should in all cases
justify such a refusal. To ensure a fair exercise of the right of
access, the communication “in an intelligible form” applies to the
content as well as to the form of a standardised digital communication.
7 Littera c. Data subjects
should be entitled to know the reasoning underlying the processing
of their data, including the consequences of such a reasoning, which
led to any resulting conclusions, in particular in cases involving
the use of algorithms for automated-decision making including profiling.
For instance in the case of credit scoring, they should be entitled
to know the logic underpinning the processing of their data and
resulting in a ‘yes’ or ‘no’ decision, and not simply information
on the decision itself. Having an understanding of these elements
contributes to the effective exercise of other essential safeguards
such as the right to object and the right to complain to a competent
8 Littera d. As regards
the right to object, the controller may have a legitimate ground
for data processing, which overrides the interests or rights and
freedoms of the data subject. For example, the establishment, exercise
or defence of legal claims or reasons of public safety could be
considered as overriding legitimate grounds justifying the continuation
of the processing. This will have to be demonstrated on a case-by-case basis
and failure to demonstrate such compelling legitimate grounds while
pursuing the processing could be considered as unlawful. The right
to object operates in a distinct and separate manner from the right
to obtain rectification or erasure (littera
9 Objection to data processing for marketing purposes should
lead to unconditional erasing or removing of the personal data covered
by the objection.
10 The right to object may be limited by virtue of a law, for
example, for the purpose of the investigation or prosecution of
criminal offences. In this case, the data subject can, as the case
may be, challenge the lawfulness of the processing on which it is
based. When data processing is based on a valid consent given by the
data subject, the right to withdraw consent can be exercised instead
of the right to object. A data subject may withdraw his or her consent
and will then have to assume the consequences possibly deriving
from other legal texts such as the obligation to compensate the
controller. Likewise where data processing is based on a contract,
the data subject can take the necessary steps to revoke the contract.
11 Littera e. The rectification
or erasure, if justified, must be free of charge. In the case of
rectifications and erasures obtained in conformity with the principle
set out in littera e, those
rectifications and erasures should, where possible, be brought to
the attention of the recipients of the original information, unless
this proves to be impossible or involves disproportionate efforts.
12 Littera g aims at ensuring
effective protection of data subjects by providing them the right
to an assistance of a supervisory authority in exercising the rights
provided by the Convention. When the data subject resides in the
territory of another Party, he or she can submit the request through
the intermediary of the authority designated by that Party. The
request for assistance should contain sufficient information to
permit identification of the data processing in question. This right
can be limited according to Article 9 or adapted in order to safeguard
the interests of a pending judicial procedure.
13 Limited exceptions to Article 8 are permitted under the conditions
specified in Article 9 paragraph 1.
Article 8bis – Additional
1 In order to ensure that the right
to the protection of personal data is effective, additional obligations
are imposed on the controller as well as, where applicable, the
2 According to paragraph 1,
the obligation on the controller to ensure adequate data protection
is linked to the responsibility to verify and be in a position to
demonstrate that data processing is in compliance with the applicable
law. The data protection principles set out in the Convention, which
are to be applied at all stages of processing, including the design
phase, aim at protecting data subjects and are also a mechanism
for enhancing their trust. Appropriate measures that the controller
and processor may have to take to ensure compliance include: training
employees; setting-up appropriate notification procedures (for instance
to indicate when data have to be deleted from the system); establishing
specific contractual provisions where the processing is delegated
in order to give effect to the Convention; as well as setting up
internal procedures to enable the verification and demonstration
3 If, in accordance with Article 9, paragraph 3, a Party choses
to limit the powers of a supervisory authority within the meaning
of Article 12bis with reference to processing activities for national
security and defence purposes, the controller has no obligation
to demonstrate to such a supervisory authority compliance with data protection
requirements for activities falling within the scope of the aforementioned
4 A possible measure that could be taken by the controller to
facilitate such a verification and demonstration of compliance would
be the designation of a ‘data protection officer’ entrusted with
the means necessary to fulfil his or her mandate. Such a data protection
officer, whose designation should be notified to the supervisory
authority, could be internal or external to the controller.
5 Paragraph 2 clarifies
that before carrying out a data processing activity, the controller
will have to examine its potential impact on the rights and fundamental
freedoms of the data subjects. This examination can be done without
excessive formalities. It will also have to consider respect of
the proportionality principle on the basis of a comprehensive overview
of the intended processing. In some circumstances, where a processor
is involved in addition to the controller, the processor will also
have to examine the risks. IT systems developers, including security
professionals, or designers, together with users and legal experts
could assist in examining the risks.
6 Paragraph 3 specifies
that in order to better guarantee an effective level of protection,
controllers, and, where applicable, processors, should ensure that
data protection requirements are integrated as early as possible
– i.e. ideally at the stage of architecture and system design –
in data processing operations through technical and organisational
measures (data protection by design). This implementation of data
protection requirements should be achieved not only as regards the
technology used for processing the data, but also the related work
and management processes. Easy-to-use functionalities that facilitate
compliance with applicable law should be put in place. For example,
secure online access to one’s own data should be offered to data subjects
where possible and relevant. There should also be easy-to-use tools
for data subjects to take their data to another provider of their
choice or keep the data themselves (data portability tools). When
setting up the technical requirements for default settings, controllers
and processors should choose privacy-friendly standard configurations
so that the usage of applications and software does not infringe
the rights of the data subjects (data protection by default), notably
to avoid processing more data than necessary to achieve the legitimate
purpose. For example, social networks should be configured by default
so as to share posts or pictures only with restricted and chosen
circles and not with the whole Internet.
7 Paragraph 4 allows Parties
to adapt the additional obligations listed in paragraphs 1 to 3
taking into consideration the risks at stake for the interests,
rights and fundamental freedoms of the data subjects. Such adaptation
should be done considering the nature and volume of data processed,
the nature, scope and purposes of the data processing and, in certain
cases, the size of the processing entity. The obligations could be
adapted, for example, so as not to entail excessive costs for SMEs
processing only non-sensitive personal data received from customers
in the framework of commercial activities and not re-using it for
other purposes. Certain categories of data processing, such as processing
which does not entail any risk for data subjects, may even be exempt
from some of the additional obligations prescribed in this Article.
Article 9 – Exceptions
1 No exceptions to the provisions
of Chapter II are allowed except for a limited number of provisions (Articles
5.4, 7 (2), 7 bis paragraph 1 and Article 8) when such exceptions
are provided for by law, respect the essence of the fundamental
rights and freedoms, and are necessary in a democratic society for
the grounds listed in litterae a. and b. of the first paragraph of Article
9. A measure which is "necessary in a democratic society" must pursue
a legitimate aim and thus meet a pressing social need which cannot
be achieved by less intrusive means. Such a measure should furthermore
be proportionate to the legitimate aim being pursued and the reasons
adduced by the national authorities to justify it should be relevant
and adequate. Such a measure must be prescribed by an accessible
and foreseeable law, which must be sufficiently detailed.
2 All processing of personal data must be lawful, fair and transparent
in relation to the data subjects, and only processed for specific
purposes. This does not in itself prevent the law-enforcement authorities
from carrying out activities such as covert investigations or video
surveillance. Such activities can be done for the purposes of the
prevention, investigation, detection or prosecution of criminal
offences and the execution of criminal penalties, including the
safeguarding against and the prevention of threats to national security
and public safety, as long as they are laid down by law and constitute
a necessary and proportionate measure in a democratic society with
due regard for the legitimate interests of the data subjects.
3 The necessity of such exceptions needs to be examined on a
case-by-case basis and in light of the essential objectives of general
public interest, as is detailed in litterae a
and b of the first paragraph. Littera a lists
some objectives of general public interest of the State or of the
international organisation which may require exceptions.
The notion of "national security" should be interpreted on
the basis of the relevant case-law of the European Court of Human
5 The term "important economic and financial interests" covers,
in particular, tax collection requirements and exchange control.
The term "prevention, investigation and prosecution of criminal
offences and the execution of criminal penalties" in this littera includes the prosecution
of criminal offences and the application of sanctions related thereto.
The term "other essential objectives of general public interest"
covers inter alia, the prevention, investigation, detection and
prosecution of breaches of ethics for regulated professions and
the enforcement of civil law claims.
6 Littera b. concerns
the rights and fundamental freedoms of private parties, such as
those of the data subject himself or herself (for example when a
data subject’s vital interests are threatened because he or she is
missing) or of third parties, such as freedom of expression, including
freedom of journalistic, academic, artistic or literary expression,
and the right to receive and impart information, confidentiality
of correspondence and communications, or business or commercial
secrecy and other legally protected secrets. This should apply in
particular to processing of personal data in the audio-visual field
and in news archives and press libraries. In order to take account
of the importance of the right to freedom of expression in every
democratic society, it is necessary to interpret notions relating
to that freedom, such as journalism, broadly.
7 The second paragraph leaves open the possibility of restricting
the provisions set out in Articles 7bis and 8 with regard to certain
data processing carried out for archiving purposes in the public
interest, scientific or historical research purposes, or statistical
purposes which pose no recognisable risk of infringement to the rights
and fundamental freedoms of data subjects. For instance, this could
be the case with the use of data for statistical work, in the public
and private fields alike, in so far as this data is published in
aggregate form and provided that appropriate data protection safeguards
are in place (see paragraph 48).
The additional exceptions allowed to Articles 12 and 12bis
in respect of processing activities for national security and defence
purposes are without prejudice to applicable requirements in relation
to the independence and effectiveness of review and supervision
Article 10 – Sanctions
1 In order for the Convention to
guarantee an effective level of data protection, the duties of the
controller and processor and the rights of data subjects should
be reflected in the Parties’ legislation with corresponding sanctions
2 It is left to each Party to determine the nature (civil, administrative,
criminal) of these judicial as well as non-judicial sanctions. These
sanctions have to be effective, proportionate and dissuasive. The
same goes for remedies: data subjects must have the possibility
to judicially challenge a decision or practice, the definition of the
modalities to do so being left with the Parties. Non-judicial remedies
also have to be made available to data subjects. Financial compensation
for material and non-material damages where applicable, caused by
the processing and collective actions could be considered too.
Article 11 – Extended
1 This article is based on a similar
provision, Article 60, of the European Convention on Human Rights. The
Convention confirms the principles of data protection law which
all Parties are ready to adopt. The text emphasises that these principles
constitute only a basis on which Parties may build a more advanced
system of protection. The expression “wider measure of protection”
therefore refers to a standard of protection which is higher, not
lower, than that already required by the Convention.
Chapter III – Transborder
flows of personal data
Article 12 – Transborder
1 The aim of this article is to
facilitate the free flow of information regardless of frontiers
(recalled in the Preamble), while ensuring an appropriate protection
of individuals with regard to the processing of personal data. A
transborder data transfer occurs when personal data is disclosed
or made available to a recipient subject to the jurisdiction of
another State or international organisation.
2 The purpose of the transborder flow regime is to ensure that
personal data originally processed within the jurisdiction of a
Party (data collected or stored there for instance), which is subsequently
under the jurisdiction of a State which is not Party to the Convention,
continues to be processed with appropriate safeguards. What is important
is that data processed within the jurisdiction of a Party always
remains protected by the relevant data protection principles of
the Convention. While there may be a wide variety of systems of protection,
protection afforded has to be of such quality as to ensure that
human rights are not affected by globalisation and transborder data
3 Article 12 applies only to the outflow of data, not to its
inflow, since the latter are covered by the data protection regime
of the recipient Party.
4 Under examination.
5 Paragraph 2 refers to
transborder flows of personal data to a recipient that is not subject
to the jurisdiction of a Party. As for any personal data flowing
outside national frontiers, an appropriate level of protection is
to be guaranteed. In cases where the recipient is not a Party to
the Convention, the Convention establishes two mechanisms to ensure
that the level of data protection is indeed appropriate; either
by law, or by ad hoc or approved standardised safeguards that are
legally binding and enforceable, as well as duly implemented.
6 Both paragraphs 2 and 3 apply
to all forms of appropriate protection, whether provided by law
or by standardised safeguards. The law must include the relevant
elements of data protection as set out in this Convention. The level
of protection should be assessed for each transfer or category of
transfers. Various elements of the transfer should be examined such
as: the type of data; the purposes and duration of processing for
which the data are transferred; the respect of the rule of law by
the country of final destination; the general and sectoral legal
rules applicable in the State or organisation in question; and the
professional and security rules which apply there.
7 The content of the ad hoc or standardised safeguards must
include the relevant elements of data protection. Moreover, the
contractual terms could be such, for example, that the data subject
is provided with a contact person on the staff of the person responsible
for the data transfers, whose responsibility it is to ensure compliance
with the substantive standards of protection. The data subject would
be free to contact this person at any time and at no cost in relation
to the data processing or transfers and, where applicable, obtain assistance
in exercising his or her rights.
8 The assessment as to whether the level of protection is appropriate
must take into account the principles of the Convention, the extent
to which they are met in the recipient State or organisation – in
so far as they are relevant for the specific case of transfer –
and how the data subject is able to defend his or her interests
where there is non-compliance. The enforceability of data subjects’
rights and the provision of effective administrative and judicial
redress for the data subjects whose personal data are being transferred
should be taken into consideration in the assessment. Similarly,
the assessment can be made for a whole State or organisation thereby
permitting all data transfers to these destinations.
9 Paragraph 4 enables
Parties to derogate from the principle of requiring an appropriate
level of protection and to allow a transfer to a recipient which
does not ensure such protection. Such derogations are permitted in
limited situations only: with the data subject’s consent or specific
interest and/or where there are prevailing legitimate interests
provided by law and/or the transfer constitutes a necessary and
proportionate measure in a democratic society for freedom of expression.
Such derogations should respect the principles of necessity and
10 Paragraph 5 makes provision
for a complementary safeguard: namely that the competent supervisory authority
be provided with all relevant information concerning the transfers
of data referred to in paragraphs 3.b, and, upon request 4.b and
4.c. The authority should be entitled to request relevant information
about the circumstances and justification of those transfers. Under
the conditions laid down in Article 9 paragraph 3, exceptions to
Article 12 paragraph 5 are permissible.
11 According to paragraph6, the supervisory authority should
be entitled to request that the effectiveness of the measures taken
or the existence of prevailing legitimate interests be demonstrated,
and to prohibit, suspend or impose conditions on the transfer if
this proves necessary to protect the rights and fundamental freedoms
of the data subjects. Under the conditions laid down in Article
9 paragraph 3 exceptions to Article 12 paragraph 6 are permissible.
12 Ever increasing data flows and the related need to increase
the protection of personal data also require an increase in international
enforcement cooperation among competent supervisory authorities.
Chapter III bis
– Supervisory authorities
Article 12bis –
1 This Article aims at ensuring
the effective protection of individuals by requiring the Parties
to provide for one or more independent and impartial public supervisory
authorities that contribute to the protection of the individuals’
rights and freedoms with regard to the processing of their personal
data. Such authorities may be a single commissioner or a collegiate
body. In order for data protection supervisory authorities to be
able to provide for an appropriate remedy, they need to have effective
powers and functions and enjoy genuine independence in the fulfilment
of their duties. They are an essential component of the data protection supervisory
system in a democratic society. Other appropriate mechanisms for
independent and effective review and supervision of processing activities,
in so far as Article 9 paragraph 3 applies, may be provided for by
Paragraph 1 clarifies that more than one authority might be
needed to meet the particular circumstances of different legal systems
(e.g. federal States). Specific supervisory authorities whose activity
is limited to a specific sector (electronic communications sector,
health sector, public sector, etc.) may also be put in place. This
also applies to the processing of personal data for journalistic
purposes if this is necessary to reconcile the right to the protection
of personal data with the right to freedom of expression. The supervisory
authorities should have the necessary infrastructure and financial,
technical and human resources (lawyers, information and communication
technologies’ specialists) to take prompt and effective action. The
adequacy of resources should be kept under review. Article 9 paragraph
3 allows for exceptions to the powers of supervisory authorities
with reference to processing activities for national security and
defence purposes (where such exceptions apply, other paragraphs
of this Article may as a consequence not be applicable or relevant).
This is however without prejudice to applicable requirements in
relation to the independence and effectiveness of review and supervision
3 Parties have certain discretion as to how to set up the authorities
for enabling them to carry out their task. According to paragraph
2, however, they must have, subject to the possibility to provide
for exceptions in line with Article 9 paragraph 3, at least the
powers of investigation and intervention and the powers to issue decisions
with respect to violations of the provisions of the Convention.
The latter may involve the imposition of administrative sanctions,
including fines. Where the legal system of the Party does not provide
for administrative sanctions, paragraph 2 may be applied in such
a manner that the sanction is proposed by the competent supervisory
authority and imposed by the competent national courts. In any event,
any sanctions imposed need to be effective, proportionate and dissuasive.
4 The authority shall be endowed with powers of investigation,
subject to the possibility to provide for exceptions in line with
Article 9 paragraph 3, such as the possibility to ask the controller
and processor for information concerning the processing of personal
data and to obtain it. By virtue of Article 8, such information should
be made available, in particular, when the supervisory authority
is approached by a data subject wishing to exercise the rights provided
for in Article 8. The latter is subject to exceptions of Article
9 paragraph 1.
5 The supervisory authority's power of intervention provided
for in paragraph 1, may take various forms in the Parties’ law.
For example, the authority could be empowered to oblige the controller
to rectify, delete or destroy inaccurate or illegally processed
data on its own account or if the data subject is not able to exercise these
rights personally. The power to take action against controllers
who are unwilling to communicate the required information within
a reasonable time would also be a particularly effective demonstration
of the power of intervention. This power could also include the
possibility to issue opinions prior to the implementation of data
processing operations (where processing presents particular risks
to the rights and fundamental freedoms, the supervisory authority
should be consulted by controllers from the earliest stage of design
of the processes), or to refer cases, where appropriate, to relevant
6 Moreover, according to paragraph 3 every data subject should
have the possibility to request the supervisory authority to investigate
a claim concerning his or her rights and liberties in respect of
personal data processing. This helps to guarantee the right to an
appropriate remedy, in keeping with Articles 8 and 10. The necessary
resources to fulfil this duty should be provided. According to their
available resources, the supervisory authorities should be given
the possibility to define priorities to deal with the requests and complaints
lodged by data subjects.
7 The Parties should give to the supervisory authority the power
either to engage in legal proceedings or to bring any violations
of data protection rules to the attention of the judicial authorities,
subject to the possibility to provide for exceptions in line with
Article 9 paragraph 3. This power derives from the power to carry
out investigations, which may lead the authority to discover an
infringement of an individual’s right to protection. The Parties
may fulfil the obligation to grant this power to the authority by
enabling it to make decisions.
8 Where an administrative decision produces legal effects, every
affected person has a right to have an effective judicial remedy
in accordance with the applicable national law.
9 Paragraph 2(e) deals with the awareness raising role of the
supervisory authorities. In this context, it seems particularly
important that the supervisory authority proactively ensures the
visibility of its activities, functions and powers. To this end,
the supervisory authority must inform the public through periodical
reports (see paragraph 125). It may also publish opinions, issue
general recommendations concerning the correct implementation of
data protection rules or use any other means of communication. Moreover,
it must provide information to individuals and to data controllers
and processors about their rights and obligations concerning data
protection. While raising awareness on data protection issues, the
authorities have to be attentive to specifically address children
and vulnerable categories of persons through adapted ways and languages.
10 As provided for under paragraph 2bis, supervisory authorities
are, in accordance with the applicable national law, entitled to
give opinions on any legislative or administrative measures which
provide for the processing of personal data. Only general measures
are meant to be covered by this consultative power, not individual
11 In addition to this consultation foreseen under paragraph
2bis, the authority could also be asked to give its opinion when
other measures concerning personal data processing are in preparation,
such as for instance codes of conduct or technical norms.
12 Article 12bis does not prevent the allocation of other powers
to the supervisory authorities.
13 Paragraph 4 clarifies that supervisory authorities cannot
effectively safeguard individual rights and freedoms unless they
exercise their functions in complete independence. A number of elements
contribute to safeguarding the independence of the supervisory authority
in the exercise of its functions, including the composition of the
authority; the method for appointing its members; the possibility
for them to participate in relevant meetings without undue restrictions;
the option to consult technical or other experts or to hold external consultations;
the duration of exercise and conditions of cessation of their functions;
the availability of sufficient resources to the authority; the possibility
to hire its own staff; or the adoption of decisions without being
subject to external interference, whether direct or indirect.
14 The prohibition on seeking or accepting instructions covers
the performance of the duties as a supervisory authority. This does
not prevent supervisory authorities from seeking specialised advice
where it is deemed necessary as long as the supervisory authorities
exercise their own independent judgment.
15 Transparency on the work and activities of the supervisory
authorities is required through, for instance, the publication of
annual activity reports comprising inter
alia information related to their enforcement actions as
set out under paragraph 5bis.
16 Notwithstanding this independence, it must be possible to
appeal against the decisions of the supervisory authorities through
the courts in accordance with the principle of the rule of law,
as provided for under paragraph 6.
17 Moreover, while supervisory authorities should have the legal
capacity to act in court and seek enforcement, the intervention
(or lack of) of a supervisory authority should not prevent an affected
individual from seeking a judicial remedy (see paragraph 118).
18 Under paragraph 7 supervisory authorities are required to
cooperate with one another. Co-operation may take various forms,
some ‘hard’ forms, such as enforcement of data protection laws,
in which the legality of action of each supervisory authority is
indispensable, to some ‘soft’ forms, such as awareness-raising, training,
staff exchange (see the “joint actions” in Article 12bis 7.b).).
In cases where a Party makes use of an exception in accordance with
Article 9 paragraph 3, this co-operation requirement shall not apply
to the functions and powers covered by such an exception.
19 The catalogue of possible co-operation activities is not exhaustive.
In the first place, supervisory authorities shall provide each other
mutual assistance, especially by providing any relevant and useful information.
This information could be of a twofold nature: “information and
documentation on their law and administrative practice relating
to data protection”, which normally does not raise any issues, such
information could be exchanged freely and made publicly available,
but also confidential information, including personal data.
20 As far as personal data is concerned, it can be exchanged
only if its provision is essential for the co‑operation, i.e. if
without its provision the co-operation would be rendered ineffective,
or if the “data subject concerned has given explicit, specific,
free and informed consent”. In any case, the transfer of personal
data must comply with the provisions of the Convention, and in particular
Chapter II (see also Article 16(b) providing for the grounds for
21 Further to the provision of relevant and useful information,
the goals of co-operation can be achieved by coordinated investigations
or interventions as well as joint actions. For the applicable procedures,
supervisory authorities shall refer to the applicable domestic legislation
such as codes of administrative, civil or criminal procedure, or
supra or international commitments their jurisdictions are bound
by, e.g. mutual legal assistance treaties, having assessed their
legal capacity to enter into a co-operation of that type.
22 The provisions on mutual assistance among supervisory authorities
shall be read in conjunction with the provisions of Articles 13
to 17, as these provisions would apply mutatis
23 Paragraph 8 refers to a network of supervisory authorities,
as a means to contribute to the rationalisation of the co-operation
process and thus to the efficiency of the protection of personal
data. It is important to note that the Convention refers to “a network”
in singular form. This does not prohibit supervisory authorities originating
from the Parties to take part in other relevant networks.
24 Paragraph 9 of Article 12bis states that supervisory authorities
shall not be competent with respect to processing carried out by
independent bodies when acting in their judicial capacity. Such
exemption from supervisory powers should be strictly limited to
genuine judicial activities, in accordance with national law.
Chapter IV – Mutual
Article 13 – Co-operation
1 Chapter IV (Articles 13 to 17)
forms a second set of provisions on co-operation between Parties,
through their various authorities, in giving effect to the data
protection laws implemented pursuant to the Convention. Mutual assistance
is obligatory except in cases referred to in Article 16. Under Article
13, the Parties shall designate one or more authorities and communicate
their contact details, as well as their substantive and territorial
competences, if applicable, to the Secretary General of the Council
of Europe. Subsequent articles provide for a detailed framework
for mutual assistance.
2 While the co-operation between Parties will generally be carried
out by the supervisory authorities established under Article 12bis,
it cannot be excluded that a Party designates another authority
to give effect to the provisions of Article 13.
3 The co-operation and general assistance is relevant for controls a priori as well as for controls a posteriori (for example to verify
the activities of a specific data controller). The information exchanged
may be of a legal or factual character.
Article 14 – Assistance
to data subjects
1 Paragraph 1 ensures that data
subjects, whether in a Party to the Convention or in a third country
will be enabled to exercise their rights recognised in Article 8
regardless of their place of residence or their nationality.
2 According to paragraph 2, where the data subject resides in
another Party he or she is given the option to pursue his or her
rights either directly in the country where information relating
to the data subject concerned is processed, or indirectly, through
the intermediary of the designated authority.
3 Moreover, data subjects residing abroad may also have the
opportunity to pursue their rights with the assistance of the diplomatic
or consular agents of their own country.
4 Paragraph 3 specifies that requests be as specific as possible
in order to expedite the procedure.
Article 15 – Safeguards
1 This article ensures that supervisory
authorities shall be bound by the same obligation to observe discretion
and confidentiality toward data protection authorities of other
Parties and data subjects residing abroad.
2 Assistance from a supervisory authority on behalf of a data
subject may only be given in response to a request from this data
subject. The authority must have received a mandate from the data
subject and may not act autonomously in his or her name. This provision
is of fundamental importance for mutual trust, on which mutual assistance
Article 16 – Refusal
of requests for assistance
1 This article states that Parties
are bound to comply with requests for assistance. The grounds for
refusal to comply are enumerated exhaustively. They correspond generally
with those provided for by other international treaties in the field
of mutual assistance.
2 The term "compliance" which is used in littera c
should be understood in the broader sense as covering not only the
reply to the request, but also the action preceding it. For example,
a requested authority might refuse action not only if transmission
to the requesting authority of the information asked for might be
harmful for the rights and fundamental freedoms of an individual,
but also if the very fact of seeking the information might prejudice
his or her rights and fundamental freedoms. Furthermore, a requested
authority may be required by applicable national law to ensure that
other public order interests are protected (e.g. ensuring the confidentiality
of a police investigation). To this end a supervisory authority
may be obliged to omit certain information or documents in its response
to a request for assistance.
Article 17 – Costs
and procedures of assistance
1 The provisions of this Article
are analogous to those found in other international conventions
on mutual assistance.
2 With a view to not burdening the Convention with a mass of
implementing details, paragraph 3 of this Article provides that
procedure, forms and language to be used can be agreed between the
Parties concerned. The text of this paragraph does not require any
formal procedures, but allows for administrative arrangements, which
may even be confined to specific cases. Moreover, it is advisable
that Parties leave to the designated authorities the power to conclude
such arrangements. The forms of assistance may also vary from case
to case. It is obvious that the transmission of a request for access
to sensitive medical information will have requirements which differ
from routine inquiries about entries in a population record.
Chapter V – Convention
1 The purpose of Articles 18, 19
and 20 is to facilitate the effective application of the Convention
and, where necessary, to perfect it. The Convention Committee constitutes
the third means of co-operation of the Parties in giving effect
to the data protection laws implemented pursuant to the Convention.
2 A Convention Committee is composed of representatives of all
Parties, from the national supervisory authorities or from the government.
3 The nature of the Convention Committee and the likely procedure
followed could be similar to those set up under the terms of other
conventions concluded in the framework of the Council of Europe.
4 Since the Convention addresses a constantly evolving subject,
it can be expected that questions will arise both with regard to
the practical application of the Convention (Article 19, littera a) and with regard to its meaning
(same article, littera d).
5 Under examination.
6 Under examination.
7 Under examination.
8 Under examination.
9 Under examination.
10 According to Article 21, the Convention Committee is entitled
to propose amendments to the Convention and examine other proposals
for amendment formulated by a Party or the Committee of Ministers
(Article 19 litterae b and
11 In order to guarantee the implementation of the data protection
principles set by the Convention, the Convention Committee will
have a key role in assessing compliance with the Convention, either
when preparing an assessment of the level of data protection provided
by a candidate for accession (Article 19 littera e)
or when periodically reviewing the implementation of the Convention
by the Parties (Article 19 littera h).
The Convention Committee will also have the power to assess the
compliance of the data protection system of a State or international
organisation with the Convention if the State or organisation requires
the Committee to do so (Article 19 littera f).
12 In providing such opinions on the level of compliance with
the Convention, the Convention Committee will work on the basis
of a fair, transparent and public procedure detailed in its Rules
13 Furthermore, the Convention Committee may approve models of
standardised safeguards for data transfers (Article 19 littera g).
14 Finally, the Convention Committee may help to solve difficulties
arising between Parties (Article 19 littera i).
Where disputes are concerned, the Convention Committee will seek
a settlement through negotiation or any other amicable means.
15 Article 20 paragraph 3 has been drafted solely for the purposes
of the present Convention and does not have any implications beyond
Chapter VI – Amendments
Article 21 – Amendments
1 The Committee of Ministers, which
adopted the original text of this Convention, is also competent
to approve any amendments.
2 In accordance with paragraph 1, the initiative for amendments
may be taken by the Committee of Ministers itself, by the Convention
Committee or by a Party (whether a member State of the Council of
Europe or not).
3 Any proposal for amendment that has not originated with the
Convention Committee should be submitted to it, in accordance with
paragraph 3, for an opinion.
Chapter VII – Final
Article 22 – Entry
1 Since for the effectiveness of
the Convention a wide geographic scope is considered essential, paragraph
2 sets at five the number of ratifications by member States of the
Council of Europe necessary for the entry into force.
Article 23 – Accession
by non-member States and international organisations
1 The Convention, which was originally
developed in close co-operation with OECD and several non-European
member states, is open to any State around the globe complying with
its provisions. The Convention Committee is entrusted with the task
of assessing such compliance and preparing an opinion for the Committee of
Ministers relating to the level of data protection of the candidate
2 Considering the frontier-less nature of data flows, accession
by countries and international organisations from all over the world
is sought. International organisations that can accede to the Convention
are solely international organisations which are defined as organisations
governed by public international law.
Article 24 – Territorial
1 The application of the Convention
to remote territories under the jurisdiction of Parties or on whose behalf
a Party can make undertakings is of practical importance in view
of the use that is made of distant countries for data processing
operations either for reasons of cost and manpower or in view of
the utilisation of alternating night and daytime data processing
Article 25 – Reservations
1 The rules contained in this Convention
constitute the most basic and essential elements for effective data
protection. For this reason, the Convention allows no reservations
to its provisions, which are, moreover, reasonably flexible, having
regard to the exceptions and restrictions permitted under certain
Article 26 – Denunciation
1 Any Party is allowed to denounce
the Convention at any time.
Article 27 – Notifications
1 These provisions are in conformity
with the customary final clauses contained in other conventions
of the Council of Europe.